United States District Court, D. Minnesota
Jordan S. Kushner, Plaintiff,
Lieutenant Troy Buhta, Officer Ashlee Lange, Officer Kathleen Temple, Sergeant Kristin Tyra, Linda Lokensgard, Eric W. Kaler, Defendants.
S. Kushner, Law Office of Jordan S. Kushner, 431 S. 7th St.,
Ste. 2446, Minneapolis, MN 55415; Peter J. Nickitas, 431 S.
7th St., Ste. 2446, Minneapolis, MN 55415, for Plaintiff.
Timothy Pramas and Daniel J. Herber, Office of the General
Counsel, University of Minnesota, 360 McNamara Alumni Center,
200 Oak St. S.E., Minneapolis, Minnesota 55455, for
RICHARD NELSON, United States District Judge
matter is before the Court on the Motion for Review of
Taxation of Costs [Doc. No. 178] filed by Plaintiff Jordan S.
Kushner. For the reasons set forth below, the motion is
granted in part and denied in part.
April 18, 2018, the Court granted Defendants' Motion for
Summary Judgment and dismissed Kushner's Complaint with
prejudice. (Sealed Summ. J. Order [Doc. No. 140].) Kushner
appealed to the Eighth Circuit Court of Appeals, which
affirmed this Court's ruling. (See 8th Cir. J.
[Doc. No. 172].)
Defendants filed a Bill of Costs with this Court, seeking
$434.05 in taxable costs from Plaintiff associated with his
unsuccessful appeal. (Defs.' Appellate Bill of Costs
[Doc. No. 173] at 1.) The total included $354.05 in
transcript fees for the August 10, 2017 hearing on
Plaintiff's motion for punitive damages, and the November
15, 2017 summary judgment hearing. (Id. at 2.) On
September 16, 2019, the Clerk of Court issued a Cost
Judgment, disallowing $80 in claimed costs, and allowing
$354.05-arising from the transcript fees-in total taxable
costs. (Cost J. [Doc. No. 177].)
seeks review of the Cost Judgment, arguing that neither of
the transcript fees were taxable costs. He asserts that
punitive damages were not at issue on appeal, and as to
summary judgment, “no evidence was presented at the
hearing and so nothing presented at that hearing was
necessary for the appeal. . . .” (Pl.'s Mot. for
Review at 2.) In response, Defendants waive the $87.60 in
costs for the transcript of the punitive damages hearing, but
ask the Court to affirm the remaining amount, $266.45, for
the summary judgment hearing transcript.
Rule of Civil Procedure 54(d)(1) provides that “Unless
a federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” A list of taxable
costs is found in 28 U.S.C. § 1920, and includes
“[f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case.”
28 U.S.C. § 1920(2). After the Clerk of Court awards
taxable costs, the party against whom costs are taxed may
move for review of the clerk's decision within 14 days.
L.R. D. Minn. 54.3(c)(3)(A). Plaintiff has timely sought
Defendants note, Plaintiff cites no authority for the
proposition that evidence must be presented at a
hearing in order for costs to be awarded for the preparation
of the hearing transcript. (Defs.' Opp'n [Doc. No.
179] at 3.) This Court has awarded costs for the preparation
of summary judgment transcripts. See, e.g., Lynch v. City
of Minneapolis, No. 14-cv-4673 (PJS/JSM), 2016 WL
4357497, at *3 (D. Minn. Aug. 15, 2016) (awarding costs for
summary judgment transcript that would have been helpful to
settlement conference); E.E.O.C. v. Hibbing Taconite
Co., No. 09-cv-729 (RHK/LIB), 2010 WL 4237318, at *3 (D.
Minn. Oct. 21, 2010) (awarding costs for summary judgment
transcript); Flint Hills Res. LP v. Lovegreen Turbine
Servs., Inc., No. 04-cv-4699 JRT/FLN, 2008 WL 4527816,
at *13 (D. Minn. Sept. 29, 2008) (awarding costs for summary
judgment transcript in connection with subsequent motion for
judgment as a matter of law).
the Eighth Circuit has affirmed the award of costs for
transcripts, even when the transcript was not actually used
in another proceeding, but rather, was “obtained for
use, ” as § 1920 provides. See Smith v. Tenet
Healthsys. SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006)
(stating that even if a deposition transcript was not
introduced at trial, district court had the discretion to
award costs if the deposition transcript was
“necessarily obtained for use in a case and was not
purely investigative.”); Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997) (affirming
award of costs for two deposition transcripts that the
district court did not rely upon in ruling on summary
judgment, stating, “‘[T]he determination of
necessity must be made in light of the facts known at the
time of the deposition, without regard to intervening
developments that later render the deposition unneeded for
further use.' In other words, the ‘underlying
inquiry is whether the depositions reasonably seemed
necessary at the time they were taken.'”)
Court finds that the summary judgment transcript reasonably
seemed necessary to Defendants for use on Plaintiff's
appeal, in light of the facts known to Defendants at the
time. As they note, in the Court's summary judgment
ruling, which Kushner appealed, the Court stated,
“Kushner concedes that his claims against President
Kaler and Officer Buhta in their official capacities are moot
now that the Trespass Order has been lifted, so the Court
will not consider those claims.” (April 18, 2018
Order [Doc. No. 140] at 19- 20.) Kushner did not make this
concession in his opposition memorandum to Defendants'
summary judgment motion. (See Pl.'s Opp'n
Mem. to Summ. J. [Doc. No. 125] at 41-42.) Rather, as
Defendants note, he made that concession at the November 15,
2017 summary judgment motion hearing, as the transcript,
filed in July 2018, reflects:
THE COURT: Let's look at some of the other claims for a
moment and see whether they should survive. The official
capacity claim against the President?
MR. KUSHNER: That's-the official capacity claims against
the President and Lieutenant Buhta are moot. The University